Published on 30 October 2023
SECOND SECTION
Application no. 56058/21
UAB AV INVESTICIJA
against Lithuania
lodged on 3 November 2021
communicated on 12 October 2023
SUBJECT MATTER OF THE CASE
The application concerns the refusal to grant lawyer-client privilege to certain correspondence between the applicant company and its advocate.
Within the framework of an ongoing investigation into a possible breach of competition law, in 2018 officials of the Competition Council conducted a search at the applicant company’s premises in Panevėžys. During that search, the officials seized certain documents and data which contained the applicant company’s correspondence with its advocate. The applicant company asked the Competition Council to treat that information as falling under the lawyer-client privilege, and to remove it from the evidence collected, which the Competition Council refused.
The applicant company started court proceedings, and the Vilnius Regional Administrative Court rejected the applicant company’s action, holding that the advocate in question had also been the applicant company’s shareholder, and therefore he was not independent from the company. That court decision was overruled by the Supreme Administrative Court, which held that the advocate’s pecuniary interest in the activity of the company (him being a shareholder) was not a reason to limit the lawyer-client privilege. Besides, the legislator had not specified whether in a situation where an advocate was linked to the client economically the lawyer-client privilege, established under Article 46 § 5 of the Law on the Bar, applied. The case was returned to the first instance court for a fresh examination.
On 2 March 2021 the Vilnius Regional Administrative Court rejected the applicant company’s action. It held that the requirement of the advocate’s independence was not met when the advocate was linked to the company in the capacity of a shareholder. The decision was upheld by the Supreme Administrative Court’s final ruling of 5 May 2021, that court having held that the lower court had properly assessed the basis, necessity and proportionality for its conclusion that the applicant company and its lawyer could not be considered to be unconditionally independent.
The applicant company complains that the court decisions to allow the Competition Council to keep the applicant company’s and its advocate’s (who is not the applicant company’s employee) correspondence and working documents amounted to a breach of the applicant company’s rights under Article 8 of the Convention. It argues that the interference did not have a proper legal basis, this being demonstrated by, among others, contradictory findings of the Supreme Administrative Court. The applicant company also considers that the interference lacked a legitimate aim and that it was disproportionate, also because of the fact that the competition investigation had been carried out in connection with the acts of a third party, rather than those of the applicant company.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicant company’s right to respect for its private life or correspondence, within the meaning of Article 8 § 1 of the Convention (see Société Colas Est and Others v. France, no. 37971/97, §§ 40-42, ECHR 2002‑III; Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 43-45, ECHR 2007‑IV, and Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, § 63, 2 April 2015, with further references)?
If so, was the interference in conformity with the requirements of Article 8 § 2 of the Convention: was it “in accordance with the law” (see, mutatis mutandis, Kopp v. Switzerland, 25 March 1998, §§ 72-73, Reports of Judgments and Decisions 1998-II; Klaus Müller v. Germany, no. 24173/18, §§ 48-52, 19 November 2020, and Vasil Vasilev v. Bulgaria, no. 7610/15, §§ 86-94, 16 November 2021)?
Did it pursue one or more of the legitimate aims set out in Article 8 § 2 and was it “necessary in a democratic society”?
Full & Egal Universal Law Academy